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01/09/91 ROBERT F. MCCULLOCH v. DISTRICT COLUMBIA

January 9, 1991

ROBERT F. MCCULLOCH, PETITIONER
v.
DISTRICT OF COLUMBIA RENTAL HOUSING COMMISSION, RESPONDENT



Petition for Review of a Decision of the District of Columbia Rental Housing Commission

Rogers, Chief Judge, and Ferren and Farrell, Associate Judges.

The opinion of the court was delivered by: Ferren

In this case in its second decade, with its third appearance in this court, *fn1 we must review the Rental Housing Commission's decision holding Robert McCulloch liable for treble damages for raising rent, based on a hardship petition, when the rental unit was not in substantial compliance with the housing code. Finding no error, we affirm.

I.

On March 18, 1980, McCulloch filed a hardship petition *fn2 for authority to increase the monthly rent of his tenants at 1428-30 A Street, S.E., Mr. & Mrs. William Hawkins, Jr., from $66.50 to $206.00. In May 1980, as part of the petition process, an official inspection resulted in a housing violation notice, #871562, for noncompliance with code provisions. On August 19, 1980, the Rent Administrator granted McCulloch a provisional rent increase which McCulloch could not implement until he cured all code violations and filed an appropriate abatement notice with the Rental Accommodations Office. On August 28, 1980, McCulloch notified the tenants of a rent increase effective October 1, 1980. He filed the required abatement notice on September 30. On October 1, 1980, a housing inspector found additional code violations and served notice #764210 on McCulloch to correct them. (The October 1 violations are not a focus of this dispute.)

On February 13, 1981, the tenants asked the Rental Housing Commission for a show cause order, alleging that McCulloch had implemented the rent increase while substantial housing code violations persisted. In particular, the tenants stated that although, according to McCulloch's abatement report, forty violations specified in notice #871562 had been abated, several "substantial" violations remained and, therefore, no rent increase could be implemented. Specifically, the tenants complained about three violations enumerated in notice #871562:

39. Cooking Room -- Window does not fit reasonably well in frame.

40. Cooking Room -- Window sash has defective part(s).

43. Rear Porch Roof has leak(s).

At a show cause hearing before a hearing examiner from the Rental Accommodations Office on March 17, 1981 (at which the tenants were denied full participation), Inspector/Supervisor Williams testified that all housing code violations had been abated before December 9, 1980. He further testified that, although the three violations cited by the tenants remained after McCulloch had filed his September 30 abatement notice, those violations were minor and did not impair the health, safety, or welfare of the tenants. On August 28, 1981, the hearing examiner dismissed the show cause order and ruled on behalf of the Rent Administrator that McCulloch had complied with the August 19, 1980 order authorizing the hardship increase. The examiner premised her decision on the finding that McCulloch had abated "all substantial violations " (emphasis in original), relying on Williams' confirmation that the three violations existing after McCulloch had filed his abatement notice were minor and that, in any event, all violations, "substantial and minor," had been abated by December 9, 1980.

The tenants appealed the Rent Administrator's ruling to the Rental Housing Commission and also requested a stay from the Commission. After a hearing on April 1, 1982, the Commission ruled on December 3, 1982 that the examiner had not abused her discretion in limiting the tenants' participation at the March 17, 1981 hearing and that McCulloch had properly implemented the hardship increase because the statute required only "substantial compliance" with the housing regulations.

The tenants then appealed to this court. On October 17, 1983, in a brief per curiam order, we concluded that "1) petitioners-tenants were erroneously denied the right to be heard as parties at the show cause hearing and 2) no record of that hearing is available." We therefore reversed and remanded the Commission's decision, ordering the hearing reopened for "evidence on the existence and abatement of any housing code violations" relevant to McCulloch's hardship petition. *fn3 After the hearing on remand, the hearing examiner ruled on behalf of the Rent Administrator on April 23, 1984 that the three violations from notice #871562 unabated as of September 30, 1980, as well as those listed in notice #764210, were not "substantial housing violations" and that the rental unit had been in "substantial compliance" with the housing regulations when the rent increase was implemented on October 1, 1980.

The tenants appealed, once again, to the Commission. After a hearing in October 1984, the Commission issued a decision on March 25, 1985 reversing the Rent Administrator's ruling. The Commission held, as a matter of law, that the three violations cited by the tenants from notice #871562, unabated as of September 30, 1980, "have been regarded as substantial through the Rental Housing Acts of 1977 and 1980." The Commission remanded the case to the Rent Administrator "for assessment of the refund and/or rollback due the tenants." *fn4

For a third time a hearing examiner heard this case. On October 29, 1987, the examiner ordered McCulloch to pay the tenants treble damages totaling $3,166. McCulloch appealed. On October 25, 1989, the Rental Housing Commission affirmed that award. McCulloch now appeals both the Commission's March 25, 1985 order that the specified housing code violations ...


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